Case: 11-50608 Document: 00512322474 Page: 1 Date Filed: 07/26/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 26, 2013
No. 11-50608
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MARCUS DESHAW HICKS,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:10-CR-292-1
Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
On the day of his trial and after the jury was selected, Marcus Deshaw
Hicks pleaded guilty to conspiring to possess with intent to distribute 50 or more
grams of a mixture containing crack cocaine. As part of his written plea
agreement, Hicks waived his right to appeal his conviction and sentence, with
certain exceptions. In exchange, the Government dismissed a second count of
the indictment and several sentence enhancement paragraphs. The district
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 11-50608
court sentenced Hicks within the advisory guidelines range to 240 months in
prison and 10 years of supervised release.
Hicks contends that he was denied effective assistance of counsel because
trial counsel failed to file a motion to suppress evidence obtained in violation of
the constitution. He also contends that his guilty plea was not knowing and
voluntary because it was a result of counsel’s erroneous legal advice concerning
his Fourth Amendment claim and the propriety of challenging the seizure. The
record in this case is not developed sufficiently for us to review this claim on
direct appeal. See United States v. Higdon, 832 F.2d 312, 314 (5th Cir. 1987).
A 28 U.S.C. § 2255 motion is the preferred method for raising a claim of
ineffective assistance of counsel. See Massaro v. United States, 538 U.S. 500,
503-04 (2003).
Additionally, Hicks argues that the district court abused its discretion in
denying his motion to withdraw his guilty plea. Review of this issue is not
barred by the appeal waiver because Hicks’s motion to withdraw was based, in
part, on his assertion that his plea was tainted by counsel’s ineffective
assistance. See United States v. Henderson, 72 F.3d 463, 465 (5th Cir. 1995).
Because Hicks did not seek to withdraw his guilty plea before the district
court accepted it, he had no absolute right to withdraw his guilty plea. See
United States v. Powell, 354 F.3d 362, 370 (5th Cir. 2003). Once the court
accepts a guilty plea, the defendant may withdraw it before sentencing if he “can
show a fair and just reason for requesting the withdrawal.” FED. R. CRIM . P.
11(d)(2)(B). We review the district court’s denial of a motion to withdraw a
guilty plea for an abuse of discretion.” Powell, 354 F.3d at 370. “[A] district
court abuses its discretion in denying a defendant’s motion to withdraw a guilty
plea only if the court bases its decision on an error of law or a clearly erroneous
assessment of the evidence.” United States v. McKnight, 570 F.3d 641, 648-49
(5th Cir. 2009).
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No. 11-50608
When determining whether to allow a defendant to withdraw his guilty
plea, the district court should consider whether: (1) the defendant has asserted
his innocence, (2) withdrawal would prejudice the Government, (3) the defendant
has delayed in filing his withdrawal motion, (4) withdrawal would substantially
inconvenience the court, (5) close assistance of counsel was available, (6) the
original plea was knowing and voluntary, and (7) withdrawal would waste
judicial resources. United States v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984).
In adopting the magistrate judge’s recommendation and denying Hicks’s motion
to withdraw his guilty plea, the district court reviewed the Carr factors and
found that Hicks had not met his burden of showing a fair and just reason for
withdrawing his guilty plea.
Hicks asserts that the district court misapplied the Carr factors and
presents his own application of the Carr factors to the facts and circumstances
of his case. However, he makes no argument and fails to show that the district
court’s decision was based “on an error of law or a clearly erroneous assessment
of the evidence.” McKnight, 570 F.3d at 648-49. Given the totality of the
circumstances, the district court did not abuse its discretion by denying Hicks’s
motion to withdraw his guilty plea. See Powell, 354 F.3d at 370.
Affirmed.
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